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.... '· October 4, 2012 CERTIFIED Hearing Docket Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2Wl000 800 Independence Ave., SW. Washington, DC 20591 Area Code 202 267-7100 

# RECEIVED OCT 052012 

# HEARING DOCKET

Re: Magorien Honing & Hydralics

# /FOm.S d.._O(O\..- 0 

# qn

# 7 FAA Case No.: 2011WP910318 

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## -fl-f</0 Enclosed herewithplease find a copy ofa request for hearing and the original and one copy of the Complaint in the above-referencedproceeding. The FAArequests that the hearing inthis matterbe held in Los Angeles, CA, and expects that the hearing will last one day. Please address all communications for the FAAto the undersigned at: Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov

Enclosures: Request for Hearing Complaint
cc: Respondent (w/copy ofComplaint) Sincerely,

# 1!£~~ Senior AttorneyCERTIFICATE OF SERVICE I hereby certify that I have, this date, served the foregoing Complaint by mailing the following copies, Certified Mail (Return Receipt Requested): Original and 1 Copy:

One Copy:

Datedthis 4th day ofOctober, 2012. Hearing Docket Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2W1000

Dave Magorien Magorien Honing & Hydraulics 1212 South Vail Avenue Montenbello, CA 90640U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF MAGORIEN HONING & HYDRAULICS FAA DOCKET NO. (not assigned) (Civil Penalty Action) FDMSNO.FAA FAA CASENO. 2011WP910318

COMPLAINT 

## OCT 

## 052012 

# HEARING DOCKET

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuantto Rule 208 ofthe Rules ofPractice (14 C.P.R. 13.208), and states as follows: I 1. On September 10, 2012, Magorien Honing & Hydraulics (Respondent) was advised by a Final Notice ofProposed Civil Penalty thatthe FAAproposedto assess a civil penalty inthe amount of$40,000.00. On September 25,2012, Respondent submitted a written request for a hearing.
2. On all dates relevantherein, Respondent was a non-certificated company providing contract maintenance functions under contractorregistration number CONN062C. 3. On all dates relevantherein, Respondent was required to comply withthe requirements of 14 C.P.R. part 120 and 49 C.P.R. part 40 for its Drug and Alcohol Testing Program.4. On June 24, 2011, the FAA conducted an inspection ofRespondent'sAntidrug and Alcohol Misuse Prevention Program. 5. As a result ofthe inspection, the following was discovered:
a. Respondent hired employee Doyle House onMay 14, 1984 and employee Douglas Godown on October 11, 1988; 2

b. OnMarch 18, 2010, Respondent was approved for a contractor registration number and beganperforming safety-sensitive work on aircraftparts belonging to American Airlines, Inc.;
c. On March 18,2010, Respondent authorized employee Doyle House to perform safety-sensitive maintenance work onAmerican Airlines, Inc. aircraft parts, despite not subjecting,Mr. House to a pre-employment drug test; d. On April I, 2010, TAG/AMS, Inc., the consortium/third party drug test administrator for Respondent, completed an "Add and Delete Form" to have employees Doyle House and Douglas Godown added to the random drug testing pool;
e. On April I, 2010, TAG/AMS, Inc. subjected Doyle House to a preemployment drug test; f. OnAprilS, 2010, TAG/AMS, Inc. subjected Douglas Godownto a preemployment drug test; g. On April 7, 2010, the result ofDoyle House's drug test was verified as NEGATIVE;h. On April9, 2010, Douglas Godown and Doyle House were added to the TAG/ AMS, Inc. random testing pool;
1. On or about April9, 2010, Respondent allowed Douglas Godownto perform safety-sensitive maintenance work, despite not having a verified NEGATIVE drug test result; J. On April14, 2010, Douglas Godown's drug test result was verified as POSITIVE for marijuana; 

### 3



### k. Afterreceiving a verified POSITIVE drug test result for Douglas Godown
onApril14, 2010, Respondent allowed him to continue performing safetysensitive maintenance work, and kept him inthe random testing pool through February 2, 2011; 

### 1. OnDecember 6, 2010, Respondent subjected Douglas Godown to a second random drug test, which was verified as POSITIVE for marijuana
onDecember 13, 2010, andreconfirmed as POSITIVE on December 21, 2010, after the split specimen was sent to Central Drug System for

· reconfirmation testing;
m. Respondent allowed Mr. Godown to continue performing safety-sensitive maintenance duties, despite the second verified POSITIVE drug test result;
n. Douglas Godownremained in therandom testing pool through February 2, 2011, continuedto be available to perform safety-sensitive maintenance duties, and never completed the return-to-duty process outlined in 49 C.P.R. pt. 40, subpart 

### 0;

### 4

o. OnFebruary 2, 2011, Respondent contacted TAG/AMS and terminated their relationship, which caused Respondent's safety-sensitive employees to no longer be subject to random drug and alcohol testing; p. After terminating their relationship with TAG/ AMS, Respondent continued to perform safety-sensitive work for American Airlines, Inc.; q. OnApril13, 2011, TAG/AMS made a random selection from their consortiumrandom pool and none ofRespondent's safety-sensitive employees had a chance ofbeing selected. 6. Inaddition to the foregoing, the FAA inspection also revealed the following:
a. Respondent did not ask safety-sensitive employees Doyle House, Douglas Godown, and Conrad Yu, if, during the past two years, they had tested positive orrefused to test on any pre-employment drug or alcohol tests administered by an employer to which they had applied for, but did not obtain, safety-sensitive work covered by the Department ofTransportation drug and alcohol testing rules; b. Respondent did not distribute informational materials on drug use and abuse to all covered employees, including Doyle House, Douglas Godown, and Conrad Yu;
c. Respondent did not distribute the company's policy regarding drug use in the workplaceto all covered employees, including Doyle House, Douglas Godown, and Conrad Yu;d. Respondent did not implement any type ofinitial drug training for any of its employees, and did not document whether supervisory personnel had completed the required drug use training;
e. Respondent failed to follow the detailed information which TAG/AMS, Inc. sent the company in a 2-page document entitled, "Whatto do ifyou have a POSITIVE for drug or alcohol test result"; f. Respondent did not maintain two years ofdocumentation showing they trained their supervisors to make a determination, based onreasonable suspicion, that an employee needed alcohol testing. II By reason ofthe foregoing facts and circumstances,Respondent violated the following Federal Aviation Regulations:

a. 14 C.F.R. 

### § 120.105: Each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function listed in this section directly orby contract (including by subcontract at any tier) for an employer as defined inthis subpartmust be subject to drug testing under a drug testing program implemented in accordance with this subpart. This includes full-time, part-time, temporary, and intermittent employees regardless ofthe degree ofsupervision. The safety-sensitive functions are: (e) Aircraft maintenance and preventive maintenance duties. 5b. 14 C.F.R. 

### § 120.109: Each employer shall conduct the types oftesting described inthis section in accordance with the procedures setforth inthis subpart and the DOT "Procedures for Transportation Workplace Drug Testing Programs'' (49 CFRpart40). 

### 6

c. 14 C.F.R. 

### § 120.109(a)(2): No employermay allow anindividual to transfer from
a nonsafety-sensitive to a safety-sensitive function unless the employer first conducts a pre-employment test and receives a verified negative drug test result for the individual." d. 14 C.F.R. 

### § 120.109(b)(6)(i)(B), which states, in pertinentpart, only safetysensitive employees are to be in an employer's random testing pool, and all safetysensitive employees must be inthe random pool.
e. 14 C.F.R. 

### § 120.215(a): Each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function listed in this section directly or by contract (includingby subcontract at any tier) for an employer as defined inthis subpart mustbe subject to alcohol testing under an alcohol testing program implemented in accordance with this subpart. This includes full-time, part-time, temporary, and intermittent employees regardless ofthe degree ofsupervision. The safety-sensitive functions are: (5) Aircraft maintenance orpreventative maintenance duties. f. 14 C.F.R. 

### § 120.217( c)(6)(i)(B), which states, inpertinent part, that only safetysensitive employees are tobe in an employer's random testing pool, and all safetysensitive employees must be inthe randompool. g. 49 C.F.R. 

### § 40.23(a): As an employerwho receives a verifiedpositive drug test result, you must immediately remove the employee involved from performing safetysensitive functions. You must take this action upon receiving the initial report ofthe

### 7 verified positive testresult. Do not wait to receive the written report orthe result ofa split specimen test. h. 49 C.F.R. § 40.23(d): As an employer, when an employee has a verified positive, adulterated, or substituted testresult, orhas otherwise violated a DOT agency drug and alcohol regulation, youmust not return the employee to the performance ofsafetysensitive functions until orunless the employee successfully completes the return-to-duty process ofSubpart 

### 0 ofthis part. 

### i. 49 C.F.R. § 40.25(j): As the employer, you must also ask the employee whether he or she has tested positive, orrefused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered byDOT agency drug and alcohol testing rules during the past two years. Ifthe employee admits that he or she had a positivetest or
a refusal to test, you mustnot use the employee to perform safety-sensitive functions for you, until and unless the employee documents successful completion ofthe return-to-duty process. 

### j. 14 C.F.R. § 120.219(a)(2)(ii)(F): Employers must maintaintwo years documentation ofcompliance with the requirements of 14 C.P.R.§ 120.223(a). In summary, 14 C.P.R.§ 120.223(a) states each employer shall provide educational materials that explain alcohol testing requirements andthe employer's policies and procedures with respect to meeting those requirements. 

### k. 14 C.F.R. § 120.219(a)(2)(ii)(G): Employers must maintain two years documentation oftraining providedto supervisors for the purpose ofqualifying thesupervisors to make a determination concerning the need for alcohol testing based on reasonable suspicion. 

### 1. 14 C.F.R. 

### § 120.115(b)(1)(ii): An employer'sEAP educationprogram must include displaying and distributing a community service hot-line telephone number for employee assistance;
m. 14 C.F.R. 

### § 120.115(b)(1)(iii): Anemployer's EAP education program must 

### 8

include displaying and distributing the employer's policy regarding drug use in the office;
n. 14 C.F.R. 

### § 120.115(c)(1): Each employer shall implement a reasonable program ofinitial training for employees. The employee training program must include at leastthe following elements: 

### (i) The effects and consequences ofdrug use on individual health, safety, and work environment; 

### (ii) The manifestations and behavioral cues that may indicate drug use and abuse; and (iii) Documentation oftraining given to employees and employer's supervisory personnel.

Pursuant to Title 49 ofthe United States Code, Section 46301, Respondent is subject to a civil penalty not to exceed $11 ,000 for each violation alleged. Under the facts and circumstances ofthis case, a civil penalty of$40,000.00 is appropriate.WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative LawJudge enter an OrderthatRespondent be assessed a civil penalty inthe amount of 

### $40,000.00. Respectfully submitted this 

### 4th day ofOctober, 

### 2012.

# Ji~LJi~ SeniorAttorney Office ofthe ChiefCounsel 

### 800 Independence Avenue, S.W. Washington, D.C. 

### 20591 

### Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov 

### 9

### 10 CERTIFICATE OF SERVICE I hereby certify thatthe foregoing Complaint has been mailed this date by Certified Mail, Return Receipt Requested, to: Original and One Copy:

One Copy: Hearing Docket Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2Wl000

Dave Magorien Magorien Honing & Hydraulics 1212 South Vail Avenue Montenbello, CA 90640

Datedthis 4th day ofOctober, 2012.r1111 1gJ UU 1/VV I

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To: Federal Aviation Administration 600 Independence Ave, SW WilburWright Building- Suite 2W1000 Washington, OC 20S9l Attn: Hearing Docket Clerk, AGC.430
To whom it may concern, 1212 South Vail Ave Montebello, CA 90640 Tel: 323-723-1151 Fax: 323-888-1154 )!JWW.magorien.con,
September 25, 2012

We are formally requesting a hearing in regards to case No. 2011WP910318. Wefeel that the penalty and explanation ofviolations were excessive and notaccurate. We have been unfairly issued a $40,000 penalty**w;:~s** for workwe had done which totaled $1,200 worth ofgross sales for us. These happened to be C.F-R. partsthat were given to us from one particular customerwho is a licensed FM repair station. The workthatwe completed was in accordance with all FAA standards, and was certified and passed by all entities involved and

### met all regulations and requirements that were needed. The said FAA repair station was required to send their parts to a companythat was licensed to work on these said parts. It was not up to usto check to see Ifthese parts were c.F.R. parts. We arejust a small honing shop and we do work forvarious companies Including aerospace, automobile, machine shops, etc. We feel we have been harshly peni:ilized dueto minor procedure and semantics that did not pertain to our company. Many ofthe infractions thatwe have been accused ofand penalized for, were Inaccurate and surely not worth a penalty of1/3 ofouryearly revenue. we are injeopardy ofgoing out of business dueto this penalty and we are unable to pay this amountwhich we will showwas unfair and inaccurate. Therefore we kindly request a**fo~:mal** hearing which we are to understand is a choice that we were offered by the FAA in regards to this case. We also request the hearingto be in the city of Los Angeles, California since the said penalties were in the state ofCalifornia and our company is also located here. We have never conducted any business physically in Washington DC nor do we have any customers there. Wethank you foryourtime and look forward to your response and the information needed for our hearing. Sincerely,

# ~ General Manager 

# RECEIVED OCT ... 32012 HEARING DOCKET